An Act Of Murder (27 page)

“We do not share that reluctance,” Moylan said.

The judge explained that after eliminating natural causes, as well as causes of death based on physical trauma, Fowler, an experienced medical examiner who had conducted over 5,000 autopsies, offered his opinion that Steve's death was caused by probable poisoning, an opinion that was allowed by law.

However, he said, Kimberly still stubbornly relied on the fact that the autopsy itself showed no trace of succinylcholine to prove there was no succinylcholine, even though various experts testified that the drug generally left no trace.

“A negative, moreover, may sometimes have positive significance,” Moylan said. “Like the dog that did not bark in the night in Holmes's [short story] ‘Silver Blaze,' the utter absence of evidence may proclaim guilt as loudly as an affirmative clue. Although it does, to be sure, partake of the paradox of
Catch 22
, the best proof of a substance that leaves no trace is the complete lack of any trace.”

Finally, Moylan said the court had not yet resolved Kim's evidentiary contention because it had “a chameleon-like quality,” and just when he thought he had pinned it down, it took another form.

Moylan said that sometimes Kimberly seemed to argue that Fowler's medical opinion was based on too little, while at other times, she seemed to argue that Fowler's medical opinion was based on too much.

“The too little argument—the absence of affirmative traces of poison in the post mortem examination—we have now disposed of. The too much argument is that Dr. Fowler may improperly have taken into consideration extrinsic evidence from sources other than the post mortem examination itself,” he said.

Moylan said in ruling to allow Fowler to give his opinion as to both the manner and cause of Steve's death, Judge Horne properly looked to the three necessary requirements: the proposed witness must be qualified to testify as an expert; the subject matter about which the witness will testify must be appropriate for expert testimony; there must be a legally sufficient factual basis to support the expert's testimony. Moylan said Horne satisfied the first two criteria, leaving only the third issue before the court.

Kim's argument, Moylan said, was that the evidence extrinsic to the post mortem examination itself might not contribute to that “factual basis.” Kim argued that in giving his expert opinion about the manner and cause of Steve's death, Fowler relied on other evidence in the case—non-medical evidence—rather than on the science, or medical evidence. But Moylan said the court's review of Fowler's testimony didn't suggest he relied, even in part, on extrinsic evidence in arriving at his conclusion. But there would have been no legal problem even if he had, Moylan said. In fact, he said, Maryland law mandated that when the medical examiner was investigating the manner and cause of a suspicious death “the police or sheriff immediately shall” give the medical examiner “the known facts concerning the time, place, manner and circumstances of the death.”

And in one final “grasping at a straw,” Kim argued that because Fowler may have relied, in part, on extrinsic evidence and because such extrinsic evidence, if relied on, was evidence readily comprehensible by the jury, the expert opinion, therefore, invaded the province of the jury.

“The argument is so speculative in several regards and without merit in so many regards that responding to it is like trying to catch a moonbeam in your hand,” Moylan said.

Though much more could have been said, the judge said it was enough to note that the jury could have been helped by the expert opinion of the experienced medical examiner that the cause of death was probable poisoning.

Moylan said that in ruling that there was an adequate factual basis for Dr. Fowler to render an expert opinion as to the cause of death, Judge Horne did not abuse his discretion. So Kimberly's third and final contention would not fly, he said.

And in this quote from
Macbeth
, Moylan once again turned to Shakespeare to drive home his point: “Thus even-handed justice commends the ingredients of our poisoned chalice to our own lips.”

Then Moylan said, “We hereby affirm the convictions for a crime that can only be described as 'twas one described by the ghost of old king Hamlet, ‘Murder most foul, but this most foul, strange and unnatural.'”

Kim was back to square one.

Her appeal denied, Kim decided to seek a new trial, claiming that her two trial attorneys did not represent her effectively, in part, because they failed to cross-examine properly the state medical examiner and deputy state fire marshal.

In preparing for Kim's request for a new trial, fire expert Gerald Hurst crafted a report for Kim's new attorney, Robert Biddle, debunking the prosecution's theory that the fire started at or near the pillows under Steve's head.

Based on his review of both prosecution and defense materials related to the fire in the Hrickos' room, Hurst said it was his opinion, to a reasonable degree of scientific certainty, that the point of origin was not the floor area adjacent to the bed, as Mike Mulligan testified. According to Hurst, the more probable point of origin of the fire was the burned bed that was located next to Steve's body.

Hurst said it was his opinion, to a reasonable degree of scientific certainty, that the fire was more likely caused by a flaming ember traveling from a woodstove to the bed adjacent to the victim than it was a deliberately set fire.

After reading the trial transcript, Hurst said he identified several areas of Mulligan's testimony that could have been subjected to cross-examination by Kim's defense attorneys, but were not. Hurst said the defense did not challenge Mulligan's testimony regarding the fire's origin during their cross-examination of him.

Hurst said Mulligan placed the fire's origin at or near the pillows under the victim's head on the left side near the foot of the bed, based on his opinion that there was heavier burning on the left side of the bed, charred wood near the left corner of the foot of the bed, and a soda bottle on the night stand that was bent somewhat in the general direction of the alleged origin.

Hurst said one common mistake that fire investigators often made was failing to take into account burning debris that fell to lower levels during the progress of a fire and then burned upward from that spot. He said that the asymmetrical burning of the bed was sufficient to establish that the fire originated to the left center of the bed, but it could not establish the exact point of origin.

“Given the clear photographic evidence of irregular drop down from the left side of the bed, it is clear that a fire on the left half of the bed would have spread to the pillows below and that the subsequent rapid vertical fire would adequately account for all of the observations made by the investigator (charred wood, bent soda bottle, asymmetric bed damage),” Hurst said.

Challenging Mulligan's opinion about the fire's point of origin would also have helped Kim's defense in other areas including debunking Mulligan's cigar tests, Hurst said. Hurst said in those tests Mulligan tested only the materials in his alleged area of origin, but he didn't test the mattress, the sheet and the blanket. Under cross-examination Mulligan did testify that not all the materials had been tested, but Hurst said that information was worthless if the jury believed those materials were not present at the point of origin of the fire.

Hurst also questioned the medical examiner's conclusion that Steve didn't die as a result of the fire because there was no carbon monoxide in his system. He said fire investigators and analysts understood that the majority of fire deaths occur because the victim had inhaled carbon monoxide of other toxins. But, he said, anyone who had investigated numerous fire deaths was aware that “low-carbon-monoxide” deaths did occur reasonably frequently and that the mechanism of death was not always determinable to a high degree of scientific certainty.

One well-known cause of death associated with fires was the phenomenon sometimes referred to as “laryngeal spasms” induced by the hot gases produced by a flash fire, according to Hurst. In those cases medical examiners often found that the respiratory systems had been partially or totally seared and reported this type of death as death by asphyxiation. In Steve's case there was no flash fire, Hurst said. However, Steve was lying on the floor directly adjacent to hanging bedclothes, as well as near the carpet and a synthetic pillow, all of which produced toxic vapors when they burned.

He said it was possible that Steve inhaled either hot or chemically laden gases early in the fire either by turning his head in his sleep toward the toxic vapor or having a flaming piece of synthetic fabric fall across his face from the bed clothing hanging along the side of the bed.

Although there was not much published data on low-carbon-monoxide deaths, Hurst said Kim's attorneys should have carefully established, through cross-examination of the medical examiner, the limitations of the written material of both thermally and chemically induced laryngeal spasms as they related to low-carbon-monoxide deaths. At the very least this would have created another issue for the jury to consider, Hurst said. But left unchallenged the medical examiner could appear to be near infallible in death cases, he said.

Another area of concern for Hurst was Mulligan's testimony concerning the alleged inability of a fire log to propel a flaming ember a few feet and set the bedding material on fire. Hurst said it was apparent from reading the trial transcript of a sidebar between the attorneys and the judge that the defense understood some of the basic weaknesses of Mulligan's testimony concerning flying embers. Hurst said the defense clearly explained those issues to Judge Horne, who also seemed to understand the problem and seemed willing to at least take some remedial action.

According to Hurst, Kim's attorneys blew their chance to plant a seed of doubt in the jurors' minds about how the fire started.

“Unfortunately, the defense attorney completely failed to impart the information he understood to the jury during cross-examination or to timely object to blatant supposition by the expert,” Hurst said.

Hurst said Kim's attorney also failed to challenge the expert concerning the technical or rational basis upon which Mulligan based his opinion.

“The end effect on the jury would have necessarily been to leave them with the false impression that the expert had unrebutted scientific bases for his speculations,” Hurst said.

Hurst added that early in his testimony Mulligan essentially conceded that the doors were open wide enough to allow one or more embers to be ejected from the woodstove. However, in order to eliminate the possibility that the fire could have been started by a flying ember, Hurst said Mulligan found it necessary to offer his opinion that the fire could not reach the fuel source because the fire log somehow lacked the power or energy that might be found in some other types of logs. Hurst said Mulligan continually offered his opinions without foundation and without objection from the defense.

Hurst pointed to this testimony from Mulligan about the wood-burning stove to prove his point: “I eliminated [the wood-burning stove]. The doors were open but as I said the only source of fuel in there, the last source of fuel, was the store-bought easy-light log. When I got there, it was still warm, but it had been out, obviously it had been out for some time and you had the crust of ash there with the paper match stuck into the ashes. And I don't believe it's possible for a spark to have generated from that log and come out the doors and travel that distance to those pillows and ignited those pillows. It's physically impossible.”

Not only did Mulligan repeat his earlier opinion that the woodstove could not have been the fuel source, Hurst said he added speculation that the fire log was the last fuel source added to the stove.

“Again the defense failed to object to the foundationless expression of opinions that might have had the effect of convincing the jury that the last possible accidental cause has been eliminated,” Hurst said.

Hurst added that the fire dynamics Mulligan testified to was pure junk science, devoid of any connection with reality. He said the defense attorneys should have hired their own expert to teach them how to expose the bogus nature of Mulligan's testimony, especially since they knew in advance that the dispersion of embers or sparks was going to be an issue at trial.

 

 

Kim's two-day hearing for a new trial began in Kent County, Maryland, on June 16, 2004. The hearing was held in Kent County because each county has only one judge, and if it were held in Talbot County, she would once again be in front of Judge Horne, the trial judge.

At the hearing, Kim's new attorney, Robert Biddle, asked the court to grant her a new trial because her trial attorneys, Harry Trainor and Bill Brennan, did not represent her effectively. Biddle told Kent County Circuit Court judge J. Frederick Price that Kim should get a new trial because her former attorneys didn't pursue information that could have shown that she didn't murder her husband or set the fire in room 506 at Harbourtowne.

In the petition for postconviction relief, Biddle claimed Trainor and Brennan failed to object to testimony that should have been ruled inadmissible, including statements Steve made to other people, as well as extremely prejudicial letters Kim wrote to Brad Winkler. Kim's new attorney also said that at trial her defense team didn't properly cross-examine Deputy Fire Marshal Mike Mulligan and the state's medical examiner Dr. David Fowler.

Biddle also contended that the state did not prove its assertion that Steve died from an injection of succinylcholine. He also challenged the evidence used to convict Kim of arson. Hurst testified via telephone from his Texas home—he was ill and unable to travel to Maryland—that a spark from the woodstove in the Hrickos' room most likely caused the fire. Biddle said Kim's defense team made a mistake by deciding not to call a fire investigator to the stand at her trial who could have testified that the woodstove could not be ruled out as the cause of the fire.

Bob Dean called his own fire expert from the Federal Bureau of Alcohol, Tobacco and Firearms to testify. The expert told the court that he had conducted several tests with woodstoves just like the one in the Hrickos' room, and even when surrounded by flammable materials, none of them sparked a fire.

In preparation for the hearing Biddle had written to Dr. Edward Friedlander, a pathologist from Kansas City, Missouri, asking for his assistance in refuting the state's theory that Steve was poisoned and that he did not die from some other cause. After providing Friedlander with background information on Kim's trial and conviction, Biddle reminded him that “as this hearing is not a substitute trial, the defendant's burden is to show that material issues relating to her innocence were not properly addressed in the original trial such that prior counsel provided ineffective assistance of counsel.”

For example, Biddle said that Gerry Hurst was prepared to testify that there were witnesses and approaches that could have been taken on the fire issues that would have provided the jury with a compelling, alternative view of the evidence suggesting that Kim was innocent. Biddle was hoping that Friedlander's testimony would accomplish the same goal.

In his letter Biddle told Friedlander that the state's principal evidence against Kim at trial was her presence at the crime scene near the time of the crime, her access to the poison that could have killed Steve—even though no poison whatsoever was found in Steve's body—and the testimony of several friends and coworkers, including Ken Burgess, Jennifer Gowen, Teri Armstrong, and Rachel McCoy. Biddle told Friedlander that those witnesses testified that Kim had confided to them her desire to kill Steve and a couple of them testified that she had told them exactly how she planned to do it, which the state argued matched exactly the way he was killed.

Biddle said the state's evidence of events outside room 506 of the Harbourtowne Inn was stronger than their evidence of events inside the room. He wrote that the crime scene itself was heavily contaminated before the state decided to view it as a crime scene. In addition, he said the state never clearly explained how Kimberly could have injected Steve with the succinylcholine while he was laying on the floor, set up the crime scene to look like an accident and then start a fire with the characteristics shown by the evidence.

Biddle told Friedlander that even though Kim never confessed to the police, the jury heard the state troopers testify that she said she would tell them what really happened if they would let her see her daughter.

“The trial attorneys, Brennan and Trainor, tried the case relying on reasonable doubt,” Biddle said. “They did not offer a single unified theory of the defense. Mr. Brennan argued in summation that the husband killed himself.”

Biddle then summed up the defense's case for Friedlander.

Brennan and Trainor introduced the husband's medical records and asked the witnesses about his exposure to toxins and other chemicals as a golf-course grounds superintendent, Biddle said. The trial lawyers were successful in keeping out the fire marshal's opinion that the fire in the Hrickos' room had been set, although he was allowed to testify that he had eliminated all accidental causes for the fire that he knew of, Biddle told Friedlander. Biddle explained that the defense medical expert, John Adams, testified that the medical examiner should have listed the cause of Steve's death as undetermined, although he testified that Steve was poisoned. Kim's uncle, David Woleslagle, told the jury that Steve smoked cigars and her mother, Lois Wolf, briefly testified that Kim was upset at Steve's death.

Biddle said there were several medical issues raised by the facts of the case. For one thing, even though the autopsy report stated that the cause of death was probable poisoning, no poison was found in the Steve's body. And even though there was a fire in the hotel room, Steve's carbon monoxide levels were normal, according to the autopsy. Biddle told Friedlander that Gerry Hurst was going to testify at the hearing that Steve could have died as a result of the fire despite his nominal carbon monoxide levels. On the other hand, Biddle said he was also reviewing whether, coincidentally, Steve died from a natural cause.